B-174908(2), MAY 23, 1972

B-174908(2): May 23, 1972

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TO MARS INCORPORATED: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 20. ENCLOSED IS A COPY OF OUR DECISION OF TODAY TO THE PROTESTANT DENYING ITS PROTEST. WHICH IS ALSO DISPOSITIVE OF THE PRINCIPAL QUESTIONS RAISED BY YOUR FIRM. " *** IF WE VARY FROM THE SUGGESTED ORGANIZATION IN THE SOLICITATION IS THIS ACCEPTABLE?". YOU SHOULD SUBMIT THE OFFER YOU FEEL WILL ALLOW YOU TO PERFORM THE MISSION IN THE MOST EFFICIENT AND ECONOMICAL MANNER. THE BOARD WILL JUDGE IT ON THAT BASIS.". THEREFORE FAIL TO FIND THAT MARS WAS PROHIBITED FROM CONSOLIDATING TWO AREAS UNDER ONE MANAGER. IT IS REPORTED THAT THE POSITIONS SET FORTH WITH UH'S MANNING TABLE WERE REVIEWED BY THE CONTRACTING OFFICER AND THE EIGHTH ARMY ENGINEER AND WERE FOUND TO BE ADEQUATE.

B-174908(2), MAY 23, 1972

TO MARS INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 20, 1972, AGREEING WITH THE GROUNDS OF THE PROTEST OF ASSOCIATED AMERICAN ENGINEERS OVERSEAS, INC., UNDER RFP NO. DAJB03-72-R-6010, ISSUED BY THE UNITED STATES ARMY KOREA PROCUREMENT AGENCY.

ENCLOSED IS A COPY OF OUR DECISION OF TODAY TO THE PROTESTANT DENYING ITS PROTEST, WHICH IS ALSO DISPOSITIVE OF THE PRINCIPAL QUESTIONS RAISED BY YOUR FIRM.

CONCERNING YOUR ALLEGATION THAT THE NEGOTIATION BOARD SPECIFICALLY TOLD YOUR FIRM THAT YOU COULD NOT CONSOLIDATE TWO AREAS UNDER ONE MANAGER, THE RECORD REFLECTS THAT DURING THE NEGOTIATIONS CONDUCTED WITH YOUR FIRM ON OCTOBER 20, 1971, YOUR MR. KELLY ASKED, " *** IF WE VARY FROM THE SUGGESTED ORGANIZATION IN THE SOLICITATION IS THIS ACCEPTABLE?" TO WHICH THE CONTRACTING OFFICER REPLIED, "YES, YOU SHOULD SUBMIT THE OFFER YOU FEEL WILL ALLOW YOU TO PERFORM THE MISSION IN THE MOST EFFICIENT AND ECONOMICAL MANNER, AND THE BOARD WILL JUDGE IT ON THAT BASIS." THEREFORE FAIL TO FIND THAT MARS WAS PROHIBITED FROM CONSOLIDATING TWO AREAS UNDER ONE MANAGER.

WITH REFERENCE TO YOUR QUESTION CONCERNING THE TECHNICAL QUALIFICATIONS OF THE AMERICAN PERSONNEL OF THE SUCCESSFUL OFFEROR, IT IS REPORTED THAT THE POSITIONS SET FORTH WITH UH'S MANNING TABLE WERE REVIEWED BY THE CONTRACTING OFFICER AND THE EIGHTH ARMY ENGINEER AND WERE FOUND TO BE ADEQUATE. THIS QUESTION RELATES TO THE RESPONSIBILITY OF UH, THE DETERMINATION OF WHICH MUST REST WITH THE CONTRACTING AGENCY. ABSENT A SHOWING OF ARBITRARY OR CAPRICIOUS ACTION BY THE DECIDING OFFICIAL, OUR OFFICE WILL NOT OVERTURN SUCH A DETERMINATION. THERE HAS BEEN NO SUCH SHOWING HERE.